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ISLAMABAD: Justice Qazi Faez Isa, one of the members of a three-judge Supreme Court bench that decided an election dispute in favour of Sheikh Rashid Ahmed on Wednesday, stressed the need for dispelling an impression that different persons were treated differently by the judiciary.

“Justice must not only be done but be seen to be done too,” Justice Isa wrote in his additional note, saying that the eligibility of members of parliament should be decided in accordance with one single and definite measure.

Justice Isa, however, enumerated seven questions in his note and requested Chief Justice Mian Saqib Nisar to constitute a full court comprising all judges of the apex court to deliberate on them before deciding the appeal of Malik Shakeel Awan who had challenged the 2013 election of Sheikh Rashid for making misdeclaration in his nomination papers.

Judge poses seven questions in Sheikh Rashid case and asks CJP to constitute full court to deliberate on them

In his note, Justice Isa explained that he had asked for the full court since every judge of the Supreme Court had heard election disputes and acquired invaluable knowledge which would undoubtedly better help decide the questions of law he had framed.

The questions are: Does every non-disclosure or misdeclaration in the nomination form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election?

If a petition does not disclose the particular on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal/court?

Does Article 225 of the Constitution, which relates to election disputes, exclude the application of Article 184(3) of the Constitution to election disputes? If the answer to the foregoing question is in the negative, then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a fundamental right, and if so, can it be determined under Article 184(3) of the Constitution?

And if the answer to the foregoing question is in the affirmative, are the procedural and evidentiary rules governing election petitions and appeals under the Representation of Peoples Act 1976 (RoPA) are the same as those governing petitions under Article 184(3) of the Constitution?

Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)?

And finally if a candidate is disqualified on account of non-disclosure or misdeclaration, does such disqualification subsist only till the next elections or is it permanent?

In his note, Justice Isa said that when divergent views were expressed by different benches of the same number of judges of this court, the matter needed early resolution and all the more so when, “any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts of Pakistan”.

In the Panama Papers case, Justice Isa said, Article 62(1)(f) of the Constitution, which provides that an adverse declaration with regard to a person’s sagacity, righteousness, profligacy, honesty and whether or not he/she is ameen, must be declared by a court of law, was expounded to mean a court of “plenary” or “competent” jurisdiction which suggests the exclusion of the Supreme Court when exercising its extraordinary original jurisdiction under Article 184(3) of the Constitution.

The question, therefore, arises whether a person can be disqualified under Article 62(1)(f) of the Constitution by this court in exercise of its jurisdiction under Article 184(3) of the Constitution? Any confusion would result when returning officers throughout the country apply different Supreme Court decisions in accepting or rejecting candidates’ nomination forms, Justice Isa added.

This is the turning point in Pakistan's history. If properly implemented, these questions will go a long way in ensuring that justice is served to the ones who still feel they were not heard.

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wshaikh

Jun 14, 2018 09:36am

Good note and suggestion.

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nauman

Jun 14, 2018 09:39am

A courageous and unbiased Judge.

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Umar Farooq

Jun 14, 2018 09:40am

At last some one got the courage to speak the truth in this lie ridden justice system...........

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Farhan Khan

Jun 14, 2018 09:44am

Voice of sanity from within the Supreme Court!

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Usman

Jun 14, 2018 10:05am

Now, that's a kind of judge you can deal with. You cannot question his heart.

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Harris

Jun 14, 2018 10:09am

He should be the CJP

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Jaan-Bhittani

Jun 14, 2018 10:17am

Pakistan need a Chief Justice like Justice Qazi Faez Isa,, Well done

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Ahmed

Jun 14, 2018 10:18am

A voice of reason and logic from SC after long time.

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Ali muslim

Jun 14, 2018 10:32am

He hits the nail on the head!!!
There is a must need to balance judicial independence and judicial accountability for a fairer system.

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khan

Jun 14, 2018 10:41am

A great Judge with very wise suggestions to CJ Suprem Court for constituting full court to review cases of all disqualification on one standard.

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Sheikh Sa'adi

Jun 14, 2018 10:43am

In short, whether the law is the same for everyone.

Or, is it different for the favourites of the Third Umpire?

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Umar Makhdumi

Jun 14, 2018 10:47am

Really an impartial, fair, honest, transparent and unbiased analysis by the Honorable Judge!!!

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Chadhary

Jun 14, 2018 10:50am

Justice Qazi Faez Isa is a great judge. I wish we have more judges like him

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Arif Abrar

Jun 14, 2018 11:48am

Finally - someone raising questions of law instead of making irrelevant comments about 'courage' and 'honesty'.

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moona

Jun 14, 2018 12:05pm

Bravo!

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Shaukat Ali Khan

Jun 14, 2018 12:11pm

Justice Isa; a judge who will always command respect.

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Sid

Jun 14, 2018 12:17pm

Valid points actually and should be looked into but this should not be allowed to be used by NS - his case is straightforward - provide money trail or go to jail without any bail

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Abdulla Hussain

Jun 14, 2018 12:21pm

Very good point raised by the honorable judge. Surely justice should also be made to be seen. In nudiciary comparing an apple to an apple is considered in a broader sense, "motive" is the key word that needs consideration. When the case of death caused by someone is taken the real motive is searched and scanned to determine if the offence comes under murder or manslaughter.

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Napier Mole

Jun 14, 2018 12:26pm

Very sound questions.

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Tahir

Jun 14, 2018 12:42pm

Pertinent point raised by the judge, it should be decided once and for all with single criteria

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Azmeen

Jun 14, 2018 03:27pm

Very valid points raised by the learned judge Isa. CJ must address those points through constituting a full court bench.